June 30, 2009

George Friedman of Stratfor offers useful correctives to some of the narratives about the Iranian election that, due to the fact that they resonated with Western audiences, found fertile soil for propagation (that the conflict was one based on liberal reform vs. clerical rule, pro-Western/US factions vs. anti-Western/US factions, pro-domestic nuclear program vs. anti-domestic nuclear program, etc). This was the case despite the fact that those Western-oriented storylines only described a small portion of the overall picture - indeed, they served to conceal the larger tectonic clashes underneath:

Iranian President Mahmoud Ahmadinejad ran his re-election campaign against the old clerical elite, charging them with corruption, luxurious living and running the state for their own benefit rather than that of the people. He particularly targeted Ali Akbar Hashemi Rafsanjani, an extremely senior leader, and his family. Indeed, during the demonstrations, Rafsanjani’s daughter and four other relatives were arrested, held and then released a day later.

Rafsanjani represents the class of clergy that came to power in 1979. He served as president from 1989-1997, but Ahmadinejad defeated him in 2005. Rafsanjani carries enormous clout within the system as head of the regime’s two most powerful institutions — the Expediency Council, which arbitrates between the Guardian Council and parliament, and the Assembly of Experts, whose powers include oversight of the supreme leader. Forbes has called him one of the wealthiest men in the world. Rafsanjani, in other words, remains at the heart of the post-1979 Iranian establishment.

Ahmadinejad expressly ran his recent presidential campaign against Rafsanjani, using the latter’s family’s vast wealth to discredit Rafsanjani along with many of the senior clerics who dominate the Iranian political scene. It was not the regime as such that he opposed, but the individuals who currently dominate it. Ahmadinejad wants to retain the regime, but he wants to repopulate the leadership councils with clerics who share his populist values and want to revive the ascetic foundations of the regime. The Iranian president constantly contrasts his own modest lifestyle with the opulence of the current religious leadership. [...]

When Ahmadinejad defeated Mir Hossein Mousavi on the night of the election, the clerical elite saw themselves in serious danger. The margin of victory Ahmadinejad claimed might have given him the political clout to challenge their position. Mousavi immediately claimed fraud, and Rafsanjani backed him up. Whatever the motives of those in the streets, the real action was a knife fight between Ahmadinejad and Rafsanjani. By the end of the week, Khamenei decided to end the situation. In essence, he tried to hold things together by ordering the demonstrations to halt while throwing a bone to Rafsanjani and Mousavi by extending a probe into the election irregularities and postponing a partial recount by five days. [...]

The key to understanding the situation in Iran is realizing that the past weeks have seen not an uprising against the regime, but a struggle within the regime. Ahmadinejad is not part of the establishment, but rather has been struggling against it, accusing it of having betrayed the principles of the Islamic Revolution. The post-election unrest in Iran therefore was not a matter of a repressive regime suppressing liberals (as in Prague in 1989), but a struggle between two Islamist factions that are each committed to the regime, but opposed to each other.

The demonstrators certainly included Western-style liberalizing elements, but they also included adherents of senior clerics who wanted to block Ahmadinejad’s re-election. And while Ahmadinejad undoubtedly committed electoral fraud to bulk up his numbers, his ability to commit unlimited fraud was blocked, because very powerful people looking for a chance to bring him down were arrayed against him.

The situation is even more complex because it is not simply a fight between Ahmadinejad and the clerics, but also a fight among the clerical elite regarding perks and privileges — and Ahmadinejad is himself being used within this infighting. The Iranian president’s populism suits the interests of clerics who oppose Rafsanjani; Ahmadinejad is their battering ram. But as Ahmadinejad increases his power, he could turn on his patrons very quickly. In short, the political situation in Iran is extremely volatile, just not for the reason that the media portrayed.

The main take away is that those suggesting that the election-related power struggle is evidence that the Iranian regime is, in fact,"irrational," or that the crackdown on protesters was so odious as to preclude negotiations, or that the parties that would have been willing to negotiate with the US government have been purged, should rethink those assumptions.

There was nothing irrational about this power struggle. It was basic jockeying for political spoils pursued by rational actors, with a regime that sought to manage the process, and whose overriding goal was pure rationality: self-preservation. The crackdown on protesters, while unquestionably brutal and horrific to behold, was, sadly, the type of illiberal action that many of our strongest allies in the region engage in regularly, and the violence (tragic as it was) pales in comparison to the actions of other regimes that we have seen fit to negotiate with in the past and present.

Finally, the Mousavi/Rafsanjani faction was no more willing to cut a deal with the US government absent security guarantees and other concessions than the Ahmadinejad faction. Regardless of which side came out on top, the contours of the deal remain the same - as do our interests in pursuing that deal, and Iran's interests in the same:

Justice Alito’s racially inflammatory concurrence doesn’t get any better when you read the lower court opinion (pdf). What’s specifically objectionable is not so much the reference to Kimber, but the needlessly inflammatory description of him.

Admittedly, Kimber does appear in the lower court opinion (pdf). The firefighters had alleged that New Haven discriminated because the City feared political backlash, particularly from the African-American community and Reverend Kimber. This was the “pretext,” legally speaking.

Unlike the Supreme Court, the lower court actually ruled on the pretext issue, so it makes sense that he came up. But the lower court opinion makes only passing references to him in the employment discrimination discussion. And even when he does come up, the lower court opinion describes him in far more general terms – e.g., he is a “vocal” and influential pastor. The opinion doesn’t go into detail about him personally – largely because that’s not relevant to anything.

Alito takes a much different approach. It’s not merely that he mentions Kimber (though even that was wholly unnecessary because the Court didn’t rule on the pretext issue). What makes Alito’s concurrence so distasteful is the manner of the description.

Alito goes out of his way to paint Kimber as Public Enemy Number #1, and uses racial innuendo to do so. Alito writes, for instance, that Kimber (1) calls lots of people racist; (2) threatened a race riot during a trial of a black man for the murder of a white Yalie; (3) was convicted for stealing funeral payments and commiting perjury; and (4) made racist slurs as chairman of a government board of fire commissioners. (See p. 3-4 of Alito’s concurrence – p. 44-45 of the pdf).

Look, Kimber may be a very bad dude. But none of this stuff is relevant in the slightest. It’s unnecessary to even bring him up. But if he must be included, the only even potentially relevant facts are that he’s influential and vocal. There’s no need to include any of the rest.

Unless of course you want to push white people’s buttons in inflammatory ways. But then again, maybe the firefighters’ description of Kimber pushed Alito’s buttons. Either way, it’s unseemly for a Supreme Court Justice in 2009 to be writing this stuff.

If someone suggested to me that the way to fix what's been ailing Somalia over the past few decades is 40 more tons of weapons and ammunition, my brain would do a double take. And yet...

The U.S. government has provided about 40 tonnes of weapons and ammunition to Somalia's embattled government in the past six weeks to help it fight Islamist insurgents, a senior U.S. official said on Friday.

The official, who spoke on condition of anonymity, said the United States spent less than $10 million on what he described as small arms and ammunition as well as on payments to other nations to train Somali government forces.

While the State Department confirmed on Thursday that it was providing weaponry to the government, it had not previously provided details on the type, cost or amount.

I'm not sure that aiding the Somali government is something the United States should be actively doing. Officials in the State Department and the Pentagon have predicted Somalia as the next terrorist incubator for years now. If Somalia falls to radical Islamists, is the United States adversely effected? I think the whole failed states as terrorist havens is an idea that dominates most of the foreign policy establishment, but is severely misguided. Terrorism is a phenomenon that can exist in a variety of states. The liberal democracies of western Europe were home to numerous terrorist groups between the 60's and 90's, so it's not an occurrence isolated to third world countries. And while the United States has not had the same experiences of domestic terrorism as some other countries, several groups from Puerto Rican nationalists to Aryan Nations have been able to operate successfully.

Look at Afghanistan. al-Qaeda was able to set up a permanent base for operations only with the help of the Taliban, which exerted powerful rule over the country. Terrorists need a stable environment, it does them no good to be involved in civil wars, as that only misdirects their energy and resources. We should keep an eye on Somalia, but this sort of offshore balancing is not likely to help either the Somalis or Americans.

Admittedly, there are no clear or easy solutions for the many problems that have led to instability and conflict in Somalia for over a quarter century. But that's just it: given the intractable, gordian knot-like matrix of conflicts and their myriad causes, why does the US government feel compelled to interfere with a proposed "solution," and why does the US government think it can succeed even if it has a legitimate interest? Especially if the solution offered involves either backing an invasion of Somalia by its long time regional rival, Ethiopia, or dumping another 40 tons of guns and ammunition on a nation already awash in such weaponry.

I've got a better idea, and it has the advantage of not inserting America in a local conflict (or conflict"s") such that one side (or multiple side"s") views us as mortal enemies and is more likely to support anti-American efforts at some point in time. It also has the benefit of being much, much cheaper. That would be: neither provide arms and ammunition, nor support military invasions (by long time adversaries, or otherwise).

Sometimes we just can't solve every conflict around the globe. That's especially true when we attempt to defuse armed conflict with more of the same (or the tools to perpetuate it). Radical, I know.

One of the most ridiculous things about the current American health care system is the accidental legacy of the price controls of WWII which led companies to promote health care benefits since they could not compete on price. The weird and unnecessary tie between health care benefits and working distorts all sorts of possible ways of dealing with lack of insurance.

But I'm not here to talk about how to fix that today. I'm here to show you the result of that strange tie, I give you Runaway Box "Boyfriend with Health Care Benefits":

A few days ago, Barney Frank introduced HR 2981, a new version of the Employment Non-Discrimination Act, which bans employment discrimination against anyone on the basis of sexual orientation or gender identity. Unlike last time, this bill includes protections for transmen and transwomen. That's the good news.

The bad news is that, according to drjillygirl at Pam's House Blend, not enough Democrats are on board to pass the bill. As of two days ago, 48 Democrats are undecided on ENDA. They are:

This should not be a hard bill to pass. The idea that people should not be able to lose their jobs because they are gay or transgender should not be controversial. For some reason that I do not understand, however, it seems to be.

And it's really, really important. This might be our best shot at getting protection from employment discrimination for a lot of people who need it. It might also be our best shot at getting a bill passed that includes protection for transmen and transwomen. This really matters: my best stab at explaining why is here. Altogether too often, the burden of educating people about trans issues, and advocating for their rights, falls on trans people themselves. As I try to explain in that post, this is not fair. And now is a good time for those of us who are not trans to step up to the plate and explain to our representatives why this matters to us.

It's not 1966 anymore. There is no excuse for the fact that it is still legal to discriminate against people on the basis of sexual orientation or gender identity. If your Representative is still on the fence, let him or her know how you feel.

I must confess that Justice Alito’s concurrence in Ricci was one of the most bizarre opinions I’ve ever read. The kindest thing I can say is that it’s gratuitously inflammatory. Alito goes out of his way to paint a very unflattering portrait of a black New Haven pastor who allegedly has the New Haven government on a leash. It would be a cool storyline for The Wire, but it’s a little weird to see it in a Supreme Court opinion.

Anyway, Alito’s concurrence is inappropriate on multiple levels. And you can’t really appreciate how bizarre Reverend Kimber’s role is until you see how utterly unnecessary and irrelevant the discussion of him was.

First, Alito was analyzing an issue that the majority opinion didn’t even reach. It was completely unnecessary. To grossly simplify, employment discrimination cases go like this. The court first decides whether the employer acted legitimately. If not, the employer can respond that its inappropriate action was justified. Third, assuming the employer meets this step, the employee can turn around and say, “that justification is merely a pretext for discrimination.”

The Court’s opinion in Ricci was technically about Step 1, although Step 2 came into play. The Court never reached Step 3. But Alito went there anyway – in weirdly specific detail. Basically, he said, “even if the dissent is right about Step 1 and 2, the firefighters could still easily win at Step 3.” His reasoning was that the professed fear of litigation could be a “pretext” for pleasing a “politically important racial constituency” (i.e., black people in New Haven).

So just to be clear before we continue – he’s analyzing an issue that’s completely unnecessary.

From there, he goes on to paint a sordid tale (taken virtually entirely from the firefighters’ description of the facts) about a politically important and controversial black pastor in New Haven who, according to Alito, apparently runs the city. This pastor was also upset about the tests and spoke out at the public meetings. Alito described this pastor in exceeding detail, as if he were writing a Richard Price novel or something.

Here’s Alito’s Rube Goldberg logic. The pastor has influence on the mayor. The mayor, in turn, has influence on the government board that actually made the decision. Understand that the stars of Alito’s concurrence – the pastor and the mayor – didn’t actually make any decision on the tests. That decision was made by a separate “politically insulated” entity, to use Ginsburg’s terms.

So the mayor is legally irrelevant here. And the black pastor (who supposedly influenced the mayor) is doubly irrelevant. How exactly Alito establishes this “influence” in the first place is a separate and interesting question.

But even assuming the mayor is relevant and that he influences the government board, Alito assumes the worst. Instead of assuming the mayor was trying to avoid liability under federal law, Alito sees him as caving to a certain constituency for illegal reasons. But how exactly can a Supreme Court Justice make that conclusion about New Haven politics? It’s almost like multiple dimensions of inappropriateness folded together in space-time.

It’s the weirdest thing I’ve read in a while. And it's disgraceful. At best, he's seen too many Wire episodes. At worst, he's playing on prejudices to help justify the Court's decision.

Notably, Roberts didn't join this concurrence, although Scalia and Thomas did. Sort of interesting, I think. Roberts is just politically smarter than the rest of them.

June 29, 2009

I’ve been traveling today, and have tried to avoid the Ricci commentary as best I could. But my take is that Ricci is an extremely political opinion – and a deeply flawed one at that. Simply put, it’s politics masquerading as legal doctrine. Indeed, Ricci is a perfect example of why the politics of judicial nominees matters.

The reality is that political preferences often determine legal outcomes. And when I say that politics matters, I mean it in two different respects – one appropriate, one inappropriate.

First, politics comes into play when judges must choose between two equally plausible interpretations of indeterminate law. Here, the decision is generally (and rightly) made on policy grounds whether the judge admits it or not. And I’m fine with that. We should be debating many of these issues on pragmatic policy grounds rather than cloaking them in inaccessible legalese. It’s more democratic.

But politics can also enter in a second, and more pernicious, way. Politics can often drive judges to ignore clearly-applicable laws, procedures, and norms that are obstacles to their preferred political outcome. It is here that politics becomes inappropriate “activism.”

Ricci has elements of both. That is, it has both appropriate and inappropriate political considerations driving the outcome.

To step back, Ricci doesn’t really turn on all the various complex legal doctrines that you’ve probably read about. When you scrape away the legalese (i.e., the Matrix), the case is really about one’s political opinion of certain remedies for historical racial discrimination. Conservatives like Roberts don’t really (in their heart of hearts) think racial discrimination is a problem anymore. Innocent white people can’t keep paying the price for crimes their ancestors committed.

Others, like Ginsburg, view the issue more historically. They don’t see racial discrimination in terms of the personal moral failings of our ancestors, but as deep structural harms whose legacy lives on and must be addressed. It’s like a river that has carved a deep canyon over centuries. Even when the water gets turned off, the canyon remains.

That’s what Ricci is about. The legal doctrine is simply a mask for this political fight.

And the Court’s majority opinion is political in at least three different ways. In other words, there are at least three points in the analysis where the actual decision is best explained as political rather than legal (warning – some of this gets wonky).

First, there is the threshold question of whether New Haven rejected the tests “because of” race (i.e., whether it was clearly “disparate treatment”). The Court summarily said “yes,” and then proceeded with the subsequent analysis. But the answer isn’t nearly as clear as the Court claimed. As Ginsburg explained, New Haven could have rejected the tests because of various potential flaws.

And besides, rejecting tests to prevent discrimination is not the same as discriminating because of race. But these are largely political opinions. And I’m actually ok with politics entering here. The law isn't clear, so let’s assume this dispute falls into Category #1 above.

The second and third points in the analysis, however, are examples of inappropriate politics (Category #2). To make a long story short, the Court reached decisions it should never have reached, and that it could not procedurally reach at this early stage of the litigation.

To begin, there was the decision not to remand. Remember that the Court announced a new (and demanding) standard regarding when employers can justify decisions based on fear of disparate-impact litigation. The appropriate response (at the summary judgment stage) would have been to send the case back down to let the lower courts take a crack under the newly-announced standard.

But the Court didn’t do that. It announced the new standard – and then proceeded to play the role of trial court by making factual decisions from cherry-picked pieces of the record.

Technically, the Court could only proceed at this stage if there
were NO material factual disputes on the various legal issues (e.g.,
business necessity). The conclusion that there were no such disputes
is simply laughable.

It’s ok to proceed with a summary judgment if the material facts are undisputed. That happens a lot. And to be realistic about it, it happens a lot even when there are a few disputed material facts, or when the legal issues don't turn on fact-intensive questions.

But this case was different. The legal disputes here were incredibly fact-intensive – and the record was full of material factual disputes that cut to the very heart of the legal issues. In short, the case needed to go to trial.

Next, there was the specific analysis of individual questions like the “business necessity” defense. I won’t belabor it, but “business necessity” is a demanding standard that is fact-intensive. The Court, however, concluded that scoring a written exam was vitally necessary to being a firefighter by ignoring other parts of the record. In short, it was a political decision. The Court essentially covered its ears and said, “nah, nah, business necessity, nah, nah, can’t hear you.”

Hendrick Hertzberg has a good piece on the fortieth anniversary of the Stonewall Riots. In it, he quotes a 1966 article from Time called "The Homosexual in America". It's worth reading as a stunning reminder of exactly how far we've come in the last forty three years. For instance:

"Both [male homosexuality and lesbianism] are essentially a case of arrested development, a failure of learning, a refusal to accept the full responsibilities of life. This is nowhere more apparent than in the pathetic pseudo marriages in which many homosexuals act out conventional roles -- wearing wedding rings, calling themselves "he" and "she."

And:

"Homosexuality (...) is a pathetic little second-rate substitute for reality, a pitiable flight from life. As such it deserves fairness, compassion, understanding and, when possible, treatment. But it deserves no encouragement, no glamorization, no rationalization, no fake status as minority martyrdom, no sophistry about simple differences in taste -- and, above all, no pretense that it is anything but a pernicious sickness."

For some reason, the tone in which this is written bothers me almost as much as the content: it's somehow curdled. The condescension, the fake knowingness, the pervasive underlying "heh heh heh" -- it sets my teeth on edge.

As long as one gay man or lesbian is denied the right to marry, or legally discriminated against because of his or her sexual orientation, or asked to leave the military after honorable service, we haven't come far enough. But we have come a long, long way.

In my last post, I noted the disquieting fact that Nick Gillespie, the editor of Reason, misquotes Carl Sandburg in the same way as Bill Ayers. Using Jack Cashill's methodology, I have now discovered frightening new evidence that Ayers actually ghostwrites Nick Gillespie's blog posts at Reason. Specifically:

Of all the bits of lunacy unleashed by the prospect that Barack Obama might actually win the election, my personal favorite was Jack Cashill's claim that Bill Ayers had ghostwritten Barack Obama's Dreams From My Father, based on such stunning evidence as this:

Guess what? Cashill is back with a new installment, which is even funnier. His first piece of evidence: Both Obama and Ayers not only quote the same line from Sandburg's Chicago, they misquote it in the same way: "Hog butcher to the world", not "Hog butcher for the world." I misremembered it as 'to the world', which just goes to show that I am, in fact, Bill Ayers. But I'm not alone: writers for the Chicago Tribune, the Washington Post, the San Francisco Chronicle, and even, to my amazement, Reason's Nick Gillespie all turn out to be Ayers too. Who knew?

But wait! There's more:

"In his Indonesian backyard Obama discovered two "birds of paradise" running wild as well as chickens, ducks, and a "yellow dog with a baleful howl."

In Fugitive Days, there is even more "howling" than there is in Dreams. Ayers places his "birds of paradise" in Guatemala. He places his ducks and dogs together in a Vietnamese village being swept by merciless Americans. In Parent, he talks specifically about a "yellow dog." And he uses the word "baleful" to describe an "eye" in Fugitive Days. For the record, "baleful" means "threatening harm." I had to look it up."

Wait: they both mentioned yellow dogs? And ducks? Well: that settles it. It also means that Bill Ayers wrote Old Yeller and Make Way For Ducklings. As a birder, I should also note that while Obama managed to put his birds of paradise in Indonesia, where Birds of Paradise are actually found, either Ayers' bird was an exotic captive or he just appropriated the name because it sounded nice.

I didn't have to look up 'baleful'. Funny thing, that. Moving right along:

"Ayers is fixated with faces, especially eyes. He writes of "sparkling" eyes, "shining" eyes, "laughing" eyes, "twinkling" eyes, eyes "like ice," and people who are "wide-eyed" and "dark-eyed."

As it happens, Obama is also fixated with faces, especially eyes. He also writes of "sparkling" eyes, "shining" eyes, "laughing" eyes, "twinkling" eyes, and uses the phrases "wide-eyed" and "dark-eyed." Obama adds "smoldering eyes," "smoldering" being a word that he and Ayers inject repeatedly. Obama also uses the highly distinctive phrase "like ice," in his case to describe the glinting of the stars."

Twinkling eyes? That's evidence?

Cashill does not think that Ayers wrote The Audacity of Hope, though. That had to have a different author. Why?

"In Audacity of Hope, Obama does not use (...) most of the distinctive words or combinations of words in Dreams. In Audacity, for instance, there are virtually no descriptions of faces or eyes, and the few that the author does use are flat and cliched -- like "brave face" or "sharp-eyed." In Dreams, seven different people "frown," twelve "grin," and six "squint." In Audacity, no more than one person makes any of these gestures. (...)

These two Obama books almost assuredly had different primary authors."

It would be foolish, in the face of this evidence, to point out that Dreams is a memoir while Audacity is a campaign book about policy, and thus that one would expect both more description and more striking language in the first than in the second. Likewise, after extensive analysis, I have concluded that while I seem to myself to have written both my scholarly publications and my blog posts, I cannot have done so, since there are lots of phrases -- 'Oh Noes!' and 'Ya Think?' leap to mind, as does the word 'blog' -- that never appear in my scholarly work, but do appear in my blog posts.

The explanation is obvious. As I said, since I remembered Sandburg's poem wrong, Bill Ayers apparently ghostwrites my memories. He probably writes my blog posts too. I just wish he had told me himself, rather than leading me to infer his presence in my head on the basis of all this literary "analysis."